Is the Phrase “Unelected Activist Judge” an Insult or a Compliment?

I’ve been too busy to post my reaction and thoughts on the Perry v. Schwarzenegger ruling from the district court that struck down Proposition 8 as unconstitutional and made gay marriage legal.  I’ll try to get to that in the next few days but the businesses must come first. (You know my rule: Unless I’ve read something completely, I try not to discuss it or give an opinion.  I wanted to get through the entire 136 pages of Judge Walker’s opinion before commenting.)  UPDATE: My analysis of the Perry v. Schwarzenegger Ruling Is Here.

Before I post my comments on the ruling and whether or not I agree with it, I want to say a word about a trend I’ve noticed over the past few years on cases involving everything from gun rights to campaign finance reform: People from both sides of the political spectrum whining about “unelected activist judges” and their so-called “judicial activism”.

When I hear it, I instantly know I’m dealing with someone who falls into one of two camps.  Either 1.) they have zero understanding of our political system and are incredibly ignorant, or 2.) they are a very intelligent politician that knows they are increasing their own stance with the party base by spouting catchphrases that reverberate with those who fit in the former category.

As a result, I would like to make four important points on the judicial system that people seem to have forgotten (maybe it’s the state of education in the school system).  Here we go…

Four Points About Judicial Activism

1: We do not live in a democracy, we live in a constitutional republic with democratic underpinnings.  That means that a large percentage of individual freedoms are not open to a popular vote but instead are placed beyond the reach of the legislature and ballot box.

Imagine you are a Christian and you move to a small town where most of the population is atheist.  The atheists are offended by your beliefs and lifestyle, which is a choice (you must choose to accept Christ), so they place an initiative on the ballot to ban any prayer, church, or marriage among Christians.

This scenario is absurd, correct?  Of course … because we live in a constitutional republic.  One of the so-called “fundamental rights” of citizenship is that the majority cannot vote to give or take away privileges in these “fundamental” areas of life, which include religion.  Even if 99% of your neighbors approved the measure, it would be the responsibility of a federal judge to strike down the law as unconstitutional.  He would be invalidating the beliefs of 99% of citizens because that is his job. Calling him an activist for doing it would be like calling a janitor an activist for cleaning a toilet.  It is a function of his duty.

In a constitutional republic, the constitution exists to protect the minority from the majority.  The founders were intelligent enough to know that mob rule was a recipe for disaster.  Watching the news yesterday, I saw many people whining like children, “What is the point of voting?  Our vote doesn’t count!”.  On matters the court has put outside the realm of majority rule, that’s right.  Our votes don’t – and shouldn’t – count because we live in a republic not a democracy. The votes of the atheists banning Christians wouldn’t count in our small town example.  The same concept holds true here.

2: The Supreme Court has built an extensive body of evidence that private sexual conduct is beyond the reach of the voters, starting in Griswold v. Connecticut.

The courts have repeatedly come down on the side of privacy when it comes to consensual sexual acts and relationships, putting this beyond the reach of the majority.

• In the 1960′s, the Supreme Court ruled in Griswold v. Connecticut that the majority could not ban contraception among married couples because private sexual behavior was entitled to “privacy” within a marriage.
• In 1972, the Supreme Court extended this ruling to non-married couples in Eisenstadt v. Baird because the court found that to only permit private sexual decisions among married couples was a violation of the equal protection laws (unmarried people were treated differently for the exact same behavior).
• In Stanley v. Georgia in 1969, the Supreme Court ruled that possession of pornography in one’s own home cannot be made a crime.
• In 2003, the Supreme Court ruled in Lawrence v. Texas that bans on sodomy (which included heterosexual and homosexual sodomy, defined as any non-procreative sex act including oral sex), was unconstitutional because the majority doesn’t have to determine which sex acts are “moral” and force two consenting adults to live by those conventions.
• In 2005, in Martin v. Ziherl, the Supreme Court of Virginia ruled that in light of Lawrence v. Texas, fornication (sex between unmarried individuals) cannot be a crime.

In other words, the courts have repeatedly said that God gave you your genitalia and your neighbors can’t tell you what you can or cannot do with it as long as you are acting consensually with someone else.  That is fundamental in a free society.

Some argue that no right to privacy exists in the constitution (such as Bork at his infamous confirmation hearings) but I believe it does because the 9th Amendment states, “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”

In other words: The constitution gives the government some powers.  Any powers not expressively given to the government are still retained by the people.  The government was never given the constitutional power to tell you what type of sex you can have.  As a result, that power is retained to individuals.  Put another way, all rights belong to the people except those we carved out in the constitution, which are on loan to the government until we change the constitution.

Now is about the time some moron spouts something they think is clever like, “What about child molesters or sex with dogs?”.  They are merely demonstrating the fact they suffer from The Dunning-Kruger Effect because they fail to understand the law sufficiently to realize that children and dogs are incapable of legally consenting or entering into private contracts.  Thus, these privacy rulings do not apply because a crime is still being committed.

3: Judges are supposed to be placed securely beyond the reach of the voters so they can do the right thing.  The founders did this by making Federal judges appointed (read: unelected) and putting them on the bench for life.  This was tempered by an impeachment safeguard.

People talk about “unelected judges” like it is an insult.  The reason the Jefferson, Franklin, Hamilton, Washington, Madison, Adams, and the rest did this was to put the judges beyond the reach of the average voter because they understood human nature and that judges had to be able to focus on what they believed was right and just; not worry about the personal or financial consequences of a decision.

If judges didn’t have this protection, there never would have been a Brown v. Board of Education or a Loving v. Virginia.

In the case a judge abuses his or her authority, the constitution gives the legislature the authority to remove them from office by beginning impeachment proceedings.  That is one of the brilliant, shining examples of checks and balances.

4: The judicial branch is not the bastard step child of the other two branches.  It is an equal, fully functioning pillar of the three-branch system of government.

The judicial branch is a check on the executive and legislative branches.  They are supposed to stand between those two and defend the constitution even when it is not popular.  When people like Pat Robertson spew nonsense like the “legislative branch is the preeminent branch of government” I wonder how many people sitting at home actually believe that nonsense.

• If the legislature voted to ban guns, wouldn’t you turn to the court to protect your right to carry a weapon?
• If the legislature voted to ban private schools, wouldn’t you turn to the court to protect your family’s beliefs?
• If the legislature voted to ban women from joining the workforce, wouldn’t you turn to the court to strike down their unconstitutional encroachment upon your personal liberty?

Of course you would!  And you should!  It is the role, the responsibility, and the great honor of the court to do that. Why?  Because the legislature vote and the popular vote have no authority over your fundamental rights.

Summary

The judges are doing their job.  Whether you or I agree or disagree with a case is one thing but to insult the judicial branch because we disagree with the outcome is to act like we live in a banana republic where mob rule is supreme.  If you truly believe change needs to happen on a specific matter, amend the federal constitution.  That is the ultimate remedy the founding fathers built into the system.

The Bottom Line: Judicial activism is not a way to describe a ruling with which you disagree.  You can call it a bad ruling, improper interpretation of the law, or shoddy jurisprudence.  But most of the time when people use the phrase, they are using it incorrectly or disingenuously.

Related posts:

1. My Analysis of Judge Walker’s Proposition 8 Ruling, Perry v. Schwarzenegger, Legalizing Gay Marriage in California (and Possibly the Entire United States)
2. Seriously, People, the 9th Amendment to the United States Constitution Does Exist!
3. Some Things to Think About the IX Amendment of the United States Constitution
4. Which Supreme Court Justice Are You? (I’m Anthony Kennedy)
5. If the Death Penalty Is In the Constitution, then the Death Penalty Cannot Be Ruled Unconstitutional If You Are Intellectually Honest